Bush administration lawyers said on Friday that a judge's decision
to throw out most of the case against Zacarias Moussaoui was threatening to undermine the Justice Department's plans to continue prosecuting Qaeda terrorists in civilian courts and had increased the pressure on the government to move Mr. Moussaoui and other terrorism suspects to military tribunals.

The concern was clear at the Justice Department, which was unwilling on Friday to say how — or even whether — it would proceed with the case against Mr. Moussaoui, a confessed Qaeda member who had been the only person charged in an American court with conspiring in the terror attacks of Sept. 11, 2001.

On Thursday, the judge, Leonie M. Brinkema of Federal District Court in Alexandria, Va., ruled that the government could not seek the death penalty against Mr. Moussaoui and that prosecutors would be barred at trial from trying to link him in any way to the Sept. 11 attacks.

Judge Brinkema said it would be unfair for the government to seek Mr. Moussaoui's execution, given its refusal to allow him to interview captured Qaeda terrorists who might provide useful testimony for his defense. In raucous court hearings last year, Mr. Moussaoui, a Frenchman, declared his loyalty to Al Qaeda and to Osama bin Laden but insisted that he had nothing to do with Sept. 11.…

Administration lawyers conceded on Friday that Judge Brinkema's ruling, if challenged in an appeals court, might well survive an appeal, setting a precedent that would hinder the Justice Department every time it sought to bring a major terrorist suspect to trial in the civilian justice system.

"If Judge Brinkema's ruling stands, it means that every single person tried in federal court for terrorism will do exactly what Moussaoui has done," said John Yoo, a University of California law professor who worked at the Justice Department for most of the last two years, helping to develop the department's policies on terrorism prosecution.

"Like Moussaoui, they will call for access to every Al Qaeda terrorist in U.S. custody somewhere in the world," he said. "It will be terrorism graymail, and the government will be very vulnerable to it."

Graymail is a term used in criminal courts, typically in espionage and other national security cases, in which prosecutors are forced to deal with defense maneuvers that threaten the public disclosure of classified information.

The issue began to threaten the Moussaoui prosecution last fall, after the United States captured Ramzi bin al-Shibh, a Yemeni in his early 30's who was a principal logistician for the Sept. 11 attacks.

In Mr. Moussaoui's indictment, Mr. bin al-Shibh was listed as the major go-between for Mr. Moussaoui and the Sept. 11 hijackers. After learning of his capture, court-appointed lawyers for Mr. Moussaoui quickly demanded access to Mr. bin al-Shibh for questioning, saying he might have valuable information for the defense.

In two separate orders this year, Judge Brinkema ordered the Justice Department to make Mr. bin al-Shibh available to the defense, but the Bush administration refused, saying defense testimony from captured Qaeda terrorists could endanger national security.

The Justice Department has argued that Mr. Moussaoui's constitutional rights to seek defense testimony do not extend to enemy combatants held overseas by the United States — an argument that Judge Brinkema and many prominent criminal-law scholars have rejected.

The confusion over the future of the Moussaoui case in civilian court has increased speculation at the Justice Department and elsewhere that the White House will soon intervene and order that Mr. Moussaoui be transferred to the custody of the military for a tribunal, possibly at the United States military base in Guantánamo Bay, Cuba.

It is a decision, however, that would be made over the protests of many at the Justice Department and elsewhere in legal circles, given the obvious implication that civilian courts — because of the procedural rights they provide to criminal defendants — are no longer capable of dealing with defendants accused of terrorism.

"It would be the government saying that it was not willing to trust our civilian courts with these cases," said Plato Cacheris, a Washington lawyer who has represented many clients accused of espionage and other crimes involving national-security secrets. "The fairness of civilian courts has been established. It's not the same if we have to resort to tribunals."

Comment:
If the only way to combat terror is to go outside democratic institutions, then we should stop the hunt for Osama bin Laden, and acknowledge he's won. His goal was not just to kill and injure Americans, but, to destroy a society whose every liberty he hates.

Even if Al Qaeda had weapons of mass destruction, they would impotently fail in the face of our laws and constitution. No one can destroy those, but us. A.I.

http://www.nytimes.com/2003/10/04/politics/04MOUS.html?pagewanted=all&position=